Judicial backlash in inter-American human rights law

After a steady process of influence upon states, both the Court and the Inter-American Commission on Human Rights are subject today to significant and direct challenges from states. From the use of diplomatic mechanisms to contain the powers of human rights bodies, to the challenges by domestic courts of the doctrines of the Inter-American Court, to the radical decision of withdrawing from a treaty, states are resisting more than ever before the authority of inter-American human rights institutions. This paper explores the episodes of resistance and delineates ways in which the Commission, and particularly the Court, could address them in order to protect their critical, and presently impugned, authority.

Nationalism with a ‘human’ face (under the veil of integration): Is the ECtHR allowing and thus fueling nationalist politics?

Recent judgments of the ECtHR provide nationalists with an opportunity to promote a nationalist discourse that is seemingly in line with human rights, but fundamentally at odds with the counter-majoritarian core of human rights. The analysis focuses on several judgments in which the ECtHR accepts arguments of liberal democratic states to infringe fundamental rights of persons belonging to (immigrant) Muslim minorities in the name of ‘requirements of living together’ or ‘social integration’. Strikingly, the justifications by the States for these infringements point to perceived threats to national identity by the divergent way of life of minorities. In accepting these nationalist justifications, the Court contradicts its steady line of jurisprudence since Chapman on liberal democracies’ need to protect minorities’ identity and lifestyle, and develops reasoning that downsizes human rights to fit the government’s perspective on what is needed to obtain an integrated society.

The Nationalist Challenge to Human Rights Courts: On Resilience and Conflict Management of the ECtHR

International courts find themselves in the center of the current backlash against international law. In most cases, the backlash against international courts manifests itself in severe challenges to the authority of a court in public discourse, through its politicization, and the non-implementation of judgments. Human rights courts as agents of counter-majoritarian interests are particularly prone to nationalist attacks. In extreme cases, this might lead to the complete shutdown of an international court, as in case of the SADC tribunal. However, even the ECtHR has been faced with nationalist criticism since its foundation, and still developed into a powerful tribunal. I will first analyze what made the ECtHR resilient against nationalist attacks, in particular by focusing on its adaptational capacity. Second, I will examine how the ECtHR as part of the Council of Europe deals with current nationalist challenges by focusing on cases involving democratic and autocratic state parties.

The Sovereigntist Challenge – Backlash to International Institutions and Public Law Theories

Since the end of the cold war the proliferation of international institutions and courts have strengthened the rule of law at the international level. Today, however even liberal-democratic states question the liberal internationalism on which the international legal system has been based. I argue that the United States, South Africa and India justify the exit from or ignorance of multilateral treaties, institutions and international courts in two ways: first, the multilateral frameworks are said to be illegitimate because they only represent the interests of some states and not of a particular country or region. Second, the institutions (especially courts) are said to take a false legal approach by granting primacy to human rights over state sovereignty. Furthermore, I assess whether and how public law theories like Global Constitutionalism, Global Administrative Law and International Public Authority address these arguments.

“We didn’t start the fire”: The Exercise of Authority in NAFTA Dispute Settlement and the Nationalist Backlash

As the discourse of economic nationalism seems to have gained political momentum, international trade and investment law stand at the eye of the storm. NAFTA, in particular, has (re)emerged as a point of contention more than twenty-four years after its entry into force. The threat of withdrawal by officials from the United States of America within ongoing renegotiations indicates a deeper level of nationalist backlash fueled mostly by an anti-globalist rhetoric. The paper aims at retaking some of the main arguments leading to the current backlash against NAFTA, particularly in the area of dispute settlement under Chapter Eleven and Chapter Nineteen. The paper’s goal is to retrospectively frame NAFTA dispute settlement bodies’ decisions and awards as an exercise of International Public Authority (IPA). This analysis may yield insights on how the echoes of NAFTA-backlash can be linked to more general trends against existing models of international economic law.